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HQ 089405


March 19, 1992

CLA-2 CO:R:C:T 089405 CMR

CATEGORY: CLASSIFICATION

TARIFF NO.: 6104.62.2010

Alan Klestadt, Esq.
Richard Wortman, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman 12 East 49th Street
New York, New York 10017

RE: Reconsideration of NYRL 858838 of February 27, 1991; Classification of leggings; tights v. pants; 6115, HTSUSA, v. 6104, HTSUSA

Dear MM. Klestadt & Wortman:

This ruling is in response to your submission of December 3, 1991, on behalf of your client, Gilda Marx Industries, Inc., requesting reconsideration of NYRL 858838. In that ruling, Customs classified style 195 as women's knit trousers. You have requested reconsideration claiming the garment should be classified as tights of heading 6115, HTSUSA, and subject to category 359. The garment will be imported from Taiwan.

FACTS:

Style 195 is a 54 percent cotton/36 percent polyester/10 percent spandex knit garment designed to cover the lower torso and legs. The garment extends to the ankles and features a one- inch elasticized self-fabric waistband, a lined diamond-shaped gusset in the crotch, and pieced fabric construction. The garment has hemmed leg bottoms and a bow-like effect at the leg openings created by joining two gathered fabric strips using two hook and eye fasteners.

In letters dated December 11, 1990, February 5, 1991, and March 5, 1991, Ms. Dolores Strick of Gilda Marx stated your client's belief that style 195 should be classified as tights of heading 6115, HTSUSA, because it was believed the garment fell within the guidelines for tights of category 359. Ms. Strick also pointed out that the garment was designed specifically for exercise wear and that the Gilda Marx company primarily designs garments for use in exercise or dance.

In a supplemental submission dated December 3, 1991, you presented arguments as to why your client's garment should be classified as tights of heading 6115, HTSUSA. Included in the submission were an audio cassette, video cassette, and various articles and advertisements to support the contention that Gilda Marx is all about exercise and therefore, clothes designed and marketed by Gilda Marx, such as the garment at issue, are designed and marketed for exercise wear and will be principally used for exercise.

ISSUE:

Was style 195 properly classified as trousers of heading 6104, HTSUSA, in NYRL 858838 of February 27, 1991?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."

Your submission focuses on the argument that Gilda Marx as a company built on exercise and the contention that style 195 will be used principally as an exercise garment and therefore is distinguishable from the garments ruled upon in HRL 088454 of October 11, 1991, and should be differently classified. That ruling classified certain garments known as leggings as trousers of heading 6104, HTSUSA.

In HRL 088454, Customs rejected athletic or exercise use as a criteria for identifying a garment as tights because, as pointed out in that ruling, tights are worn for reasons other than exercise, such as fashion. In HRL 089852 of February 19, 1992, Customs ruled on garments similar to style 195 in that the garments were designed and marketed for use during exercise activities. In that ruling, Customs further examined the meaning of tights classifiable in heading 6115, HTSUSA. The scope of heading 6115, HTSUSA, is limited by its terms to hosiery articles. In order to be classifiable as tights of heading 6115, the garment must be a hosiery article. In HRL 089852, it was determined that the articles therein were not hosiery. For the reasons outlined in HRL 089852, Customs does not view style 195 as hosiery either. Therefore, it is not classifiable as tights of heading 6115, HTSUSA.

In the alternative, you have argued if not classifiable as tights, style 195 should be classified in heading 6114, HTSUSA, which provides for other garments. This argument is primarily
based on the use of the garment as exercise wear and that it has features not normally associated with trousers, i.e., a cotton- lined gusset and four-way stretch fabric. This argument was addressed in HRL 089852. In that ruling, Customs stated:

However, we reject the contention that because the garments are designed for use during exercise, dance or other athletic activities that somehow makes them "more than" or "other than" pants. Sweat pants and sweat shirts are garments worn especially during exercise, but that does not make them "more than" or "other than" pants or shirts. Garments such as jogging shorts with liners for support, bike shorts with padding in the crotch and sun dresses with bust support sewn in clearly possess features which eliminate the need to wear certain traditional undergarments. These features are not features which generally come to mind when one considers the general class of "shorts" or "dresses". Heading 6104, HTSUSA, is not limited by the language of the heading and therefore includes all forms of women's knit pants or trousers. See, Nootka Packing Co. et al. v. United States, 22 CCPA 464, T.D. 47464 (1935).

As in HRL 089852, Customs accepts that style 195 is designed, marketed and sold as an exercise garment. However, we reject the argument that the use of the garment for exercise makes it something other than knit pants.

Customs believes that the marketing material which has been reviewed supports our view that these garments, regardless of use, are pants and considered such in the marketplace. Customs has reviewed material submitted by you on your client's behalf and advertisements placed in magazines, newspapers and catalogs, which have been sent in from Customs various field offices.

Customs has found several advertisements for garments by Gilda Marx, Marika, Danskin and Jacques Moret in which the goods are identified as bike shorts, capri pants, ankle-length pants, knee pants and pedal pushers. These goods have been identified as such in advertisements for such retailers as J.C. Penney, Oshman's, Spiegel, and Sears. Advertisements for local retailers have appeared in newspapers such as the L.A. Times and the Washington Post identifying these goods in the same manner. Customs has collected and continues collecting advertisements on goods of the same class or kind as your client's in which the garments are identified as some type of shorts or pants.

In fact, Exhibit F of your submission which consists of copies of Gilda Marx's recent catalogues and sales brochures is filled with examples of garments identified as bike pants, pedal pushers, capri pants, hot pants, etc. Actually, a garment
identified as style 195 and appearing to be of the same design as the garment before us, is referred to as a capri pant in the Summer 1991 catalogue.

HOLDING:

Not being satisfied that the garment at issue, style 195, is "more than" or "other than" pants, the garment is classifiable in subheading 6104.62.2010, HTSUSA, as women's knit pants. The garment falls within textile category 348 and is dutiable at 16.7 percent ad valorem. NYRL 858838 of February 27, 1991, correctly classified the garment at issue and is affirmed.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division

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